The Debriefing

After twelve days of trial and deliberation, the jury found my client guilty of tampering with physical evidence.

Now, ordinarily I figure that going and talking to a jury after a trial is a good way to get lied to, but here we had what I felt was a full and fair exchange of views. And I was left with the definite impression that I had simply failed to communicate with this jury.

The State had to prove that my client had altered or destroyed drugs with the intent to impair their availability as evidence in a pending investigation (the State also had to prove that he knew an investigation was pending, but I think that's subsumed by the specific intent—you can't intend to impair evidence's availability in a pending investigation unless you know that investigation is pending). It wasn't enough to show that my client was negligent or reckless with the drugs, nor that he intended to use the drugs.

Intent is more than negligence or recklessness or even knowledge.A person acts with intent with respect to a result of his conduct when he has the conscious objective or desire to cause the result. So the State had to prove (I don't quibble with the other elements here, though our theory at trial was that my client hadn't altered or destroyed drugs at all) that my client had the conscious objective or desire to impair the drugs' availability as evidence in a pending investigation.

The State had to prove beyond a reasonable doubt that my client consciously wanted to make the drugs unavailable as evidence. And the State presented neither direct nor circumstantial evidence of my client's conscious objective or desire.

When I asked the jury afterward about the specific intent element, they talked about my client having a higher duty, and drew an analogy to a doctor leaving a sponge in a patient (negligence per se, though they didn't use those words). That's comparing apples and orangs. I asked again a little later, and got no more satisfying answer. Though the jury had a written jury charge explaining that the State had to prove that my client had the conscious objective or desire to impair the availability of the drugs, and though I had pointed out in closing argument that the State hadn't proven that, the jury couldn't articulate any evidence of specific intent. They had, it seemed, glossed over that element of the allegations.

Who's to blame? Not the judge, though he gave the jury the "intentional intoxication" instruction, which could have been misread to eliminate the requirement of proof of specific intent. Not the prosecutor——he studiously avoided the question of specific intent at every stage in the trial, but he never argued that he didn't have to prove specific intent. Not the jury—they were a hardworking bunch who did the best they could with the material they were given. When a communication fails, it's a poor communicator who blames his audience.

No, the buck stops with me. I failed to communicate to the jury the importance of that element of the offense, and the significance of the absence of proof of that element. It was the final prong of my closing argument, tossed in as lagniappe. Should it have come first? Should it have been the only prong? I knew from the beginning that the State was going to have no actual evidence that my client had intended to make the drugs unavailable. Should that have been the story I told, instead of the story of the alternate suspect?

Any other strategic or tactical decision I might have made would have had its own dangers. It brings more questions than answers—no answers, actually—but second-guessing is part of doing the job conscientiously. I give myself a day to postmortem the trial and wallow in failure, and then it's on to the next fight. Because it's not the getting knocked down that defines us, it's the getting back up.

16 Comments

  1. I can’t help but compare an attorney’s getting back up with the getting back up of a client who was found guilty due to…what? miscommunication? the correct words spoken aloud, to the correct audience, but in the wrong order?

    I sure am glad others are willing to practice law, because I could never do it. The self-doubt would eat me alive from the inside out.

  2. Mark, when you are done beating yourself up; I just want to tell you that your punishment closing was one of the best “a good person did one bad thing” closings that I have heard- You had him basically conceding this was a probation case before he ever transitioned into his plea for time.
    Plus he came off petulant and whiny when he complained about your categorizations of mercy v, judgement and the like- well done.

  3. Such familiar thoughts.

    Still bizarre to hear about “punishment closing.” I think I’d like that.

  4. Mr. Bennett was brilliant in his closing for sentencing. It was quite impressive and left no wiggle room for the jury. Jail time was never an option at that point.

  5. Was it really a result-oriented (vs. conduct-oriented) offense, in terms of intent? That distinction is often hard for juries to understand. If you’re forced to concede the other elements, (which means that the client was pretty much caught red…er, white-handed) then you had more of an uphill battle than I thought. Sometimes, they just aren’t going to let the client go, no matter how valid the legal arguments. You made them think, kept them out, and — apparently — as David pointed out, kept the client out of prison. We all second-guess our closings and strategies when it appears a jury has not “gotten” something crucial, but I wouldn’t feel too badly. It sounds like you did a good job.

    1. I didn’t concede the other elements, and I don’t now. But there was some actual evidence that the drugs had vanished while my client was in custodypossession of them, so I’m not quibbling about that part of the verdict.

  6. You learn most from the cases you lose. You can second guess everything. And other platitudes. But in the end you know the guy was well-represented.

  7. It takes a big, Big man to study his failures and learn how not to make the same mistakes again.

  8. Mark, what did your client allegedly do to/with the drugs? I am guessing swallowed them from the reference to the intentional intoxication charge. Just wondering!

    1. The State never expressed a clear theory on that.

      He was under the influence of prescribed medications at the time, whence the intentional intoxication charge.

  9. Mark —

    Self-criticism is an admirable practice when applied fairly. However, fairness to oneself is often very difficult when the subject conscientiously applies his best with intelligence, honor, and fidelity. The honest advocate cannot guarantee their audience will adopt his own conclusions and convictions. Audiences will at times hear what they are prepared to hear, allow extraneous interest to filter reason, and mistake what they are presented, no matter the logic of argument, the excellence of diction and syntax, or the heartfelt passion of eloquence.

    Without taking away anything of the jury’s hardwork, consider the crux of following:

    “As there is no worse lie than a truth misunderstood by those who hear it, so reasonable arguments, challenges to magnanimity, and appeals to sympathy or justice, are folly when we are dealing with human crocodiles and boa-constrictors.”

    William James

    Be fair to yourself. Consider what may have been said differently but be lenient with yourself for the mistake of others.

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